Opinion
E038639
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. ALBERT GIL, Defendant and Appellant.
David Joseph Macher for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, Garrett Beaumont and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant guilty of attempted residential burglary, as a lesser included offense of burglary. The court found defendant had one prior conviction alleged as a serious felony under Penal Code section 667, subdivision (a) and as a "strike" under the three strikes law. The court sentenced defendant to nine years. We affirm the judgment but remand the matter for computation of defendants presentence custody credits.
I
FACTS
A. Prosecution Evidence
Defendant lived next door to the Cavazos house in Moreno Valley. On March 29, 2003, the Cavazos family had moved out of the house but still had some of their property there, including some computer equipment, a TV, and a fax machine. Arthur Cavazos continued to sleep at the house because he was concerned about the property that was still there.
In the early morning hours of March 29, 2003, Cavazos was sleeping when the doorbell rang. He looked out but could not see anyone. Then the bell rang again. Cavazos looked out a window and saw an individual walking away from his front door and across his yard. He could not see the persons face.
A little later, Cavazos saw the light of a flashlight coming through the windows on the side of his house. The light came closer and started coming through a sliding door of the house. Cavazos became concerned and called 911.
The person with the light approached the sliding door, which was locked, and seemed to be fooling with the bottom of it. Cavazos left the house through the front door and walked toward the street. There he met Deputy Liu, who was responding to the 911 call.
Cavazos told Liu what had happened. He described the person he had seen outside his house and said the person resembled his neighbor, Mr. Gil. While Liu waited for backup, a person poked his head over a wall between the Cavazos house and defendants house. Liu told the person to stop, but the person immediately ducked out of view. Liu looked over the wall and saw the person move briskly toward the back of defendants house and disappear around a corner.
After more officers arrived, Liu and Deputy Mooney searched the Cavazos house but found no possible suspects inside. However, the rear sliding glass door to the house was open about one foot. The officers then entered defendants backyard and found a lawn chair propped against the wall between defendants house and the Cavazos house.
While the officers were in defendants backyard, Mooney found that the sliding glass door to defendants house was unlocked. He opened it and announced they were the police. Two angry pit bull dogs met the officers. Other officers tried, unsuccessfully, to contact defendants house by phone, by knocking on the front door, and by using a bullhorn to announce their presence in front of the house.
Mooney shined his flashlight inside defendants house and saw a person run across the light beam. After the officers subdued the pit bulls with a nonlethal pepper ball gun, they entered and searched the house. They found defendant hiding in the shower of the downstairs bathroom. Liu recognized defendant as the person he had seen at the wall. Liu also noticed a flashlight somewhere inside the house. Mooney saw, lying on a countertop in the kitchen, a screwdriver.
The officers arrested defendant, and Mooney questioned him after defendant waived his Miranda rights. Defendant first denied having gone to the Cavazos house that night. After a break, however, defendant said he had come home and thought his house had been burglarized, and he might have gone to the Cavazos house to ask Cavazos if he had seen anybody. Defendant had not said anything about his house having been burglarized when the officers apprehended him.
Miranda v. Arizona (1966) 384 U.S. 436.
The following afternoon, defendant told Cavazos he had rung Cavazoss doorbell the day before because he thought he saw someone in Cavazoss backyard with a flashlight. Defendant had not told Mooney about this the night before.
B. Defendants Testimony
Defendant was the only defense witness. He denied burglarizing or attempting to burglarize the Cavazos house on March 29, 2003. Defendant admitted he had knocked on Cavazoss door but said he did so because his trash can had been moved to the other side of his house, and he wanted to ask Cavazos if he had seen anything. When no one answered, defendant went home.
When the police came, defendant was scared to answer the door because he was on probation from Orange County on charges of stalking and making a criminal threat. He was in violation of his probation, because his probation officer, Lori Soto, had ordered him to move back to Orange County, but defendant had not done so. He thought the police had come to violate him. He figured if he did not answer, they would go away.
C. Rebuttal
Probation Officer Lori Soto testified she first met defendant on May 19, 2003. Someone else, a man, was defendants probation officer in March 2003. Soto never told defendant to move out of Riverside County into Orange County. In fact, the victim in the case for which defendant was on probation lived in Orange County, and the court records indicated the court had ordered defendant to stay out of Orange County.
II
DISCUSSION
A. Fourth Amendment Claim
Defendant contends the officers warrantless entry into his backyard and later into his home, as well as his arrest, violated the Fourth Amendment. Under the Fourth Amendment, "police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home." (Kirk v. Louisiana (2002) 536 U.S. 635, 638.) Defendant contends no exigent circumstances existed in this case, nor did any other exception to the warrant requirement apply.
1. Evidence at suppression hearing
Before trial, defendant moved pursuant to Penal Code section 1538.5 to suppress (1) the officers observations from inside his backyard into his house, and from inside the house after they entered; (2) items seized from his house; and (3) defendants statements to the officers when they apprehended him and thereafter. At the hearing on the motion, the parties presented the following evidence. In keeping with our standard of review, "we state the facts in the manner most favorable to the trial courts determination and resolve conflicts in the evidence in favor of the finding below. [Citation.]" (People v. Johnson (1989) 47 Cal.3d 1194, 1231.)
About 1:00 a.m. on March 29, 2003, Liu was dispatched to the Cavazos house. He arrived at the house about five minutes later.
As Liu walked up to the front door of the Cavazos house, Arthur Cavazos ran out of the house holding a baseball bat. Cavazos said he lived in the house and was in the process of moving out. About 1:00 a.m., someone had rung his doorbell. Cavazos ignored the bell. All of the lights in the house were off at the time.
About 10 minutes later, Cavazos said, the bell rang again. Cavazos went upstairs so he could look down and see who was at the door. He saw a man about five feet seven inches to five feet nine inches tall, with a medium build and a shaved head or very short haircut. The man was wearing dark colored clothing. When Cavazos did not answer the ring, the man walked away, to the west. Defendants house was immediately to the west of the Cavazos house.
Cavazos said that after the man walked away, he saw someone in his backyard with a flashlight. At that point, Cavazos called 911. Then the person came inside the Cavazos house through the back sliding glass window. Cavazos said the suspect might have used some sort of tool to gain entry.
On hearing this, Liu called for a backup unit. While he was waiting, Liu saw a man poke his head up over a wall about six feet high between the Cavazos house and defendants house. The man was on the west side of the wall, in the corner. Liu could see the upper portion of the mans head, probably down to the lips.
Liu announced himself as a police officer and told the man to identify himself. As Liu approached the corner of the wall, the man immediately ducked his head down. Liu ran to the wall and propped himself onto it. He saw the man run toward the backyard area of defendants house and turn around the corner of the house.
Liu did not want to chase the man by himself, because he did not know whether the man was armed or was accompanied by others. Also, he did not know if there might still be someone in Cavazoss house. Liu called for backup units, and a minute or two later Deputy Mooney came to assist him, arriving at 1:20. Within the next three or four minutes, other deputies arrived. There were six or seven officers on the scene.
When Sergeant Hedge arrived, the officers set up a perimeter of about one and one-half blocks in case the suspect had fled further west or south. Liu and Mooney then entered the Cavazos house to see if anyone was inside but did not locate anyone. The search of the Cavazos house took about three or four minutes, according to Liu, and five to 10 minutes, according to Mooney.
Liu and Mooney then went with Hedge and another officer to the backyard of defendants house, where Liu had last seen the man who had peeked over the wall. One or two of the officers entered defendants backyard by climbing over a locked gate on the west side of defendants house. The officers did not find anyone in the backyard. However, there was a lawn chair propped against the east side wall, the wall that ran between defendants backyard and the backyard of the Cavazos house.
Liu saw that all of the lights in defendants house were off, and there was no TV on. Liu believed the man he had seen at the wall was still in the area. It had been only five or 10 minutes since Liu had seen the man and the officers had set up a perimeter to keep anyone from leaving the area. In addition, the officers had asked their dispatcher to notify them if any other residents called the police regarding a suspicious person on their property.
The officers also had their dispatcher determine the telephone number for defendants house and call the house. Liu could hear the phone in defendants house ring two separate times, but each time the answering machine picked up the call after three or four rings. In addition, Liu heard an officer on the front side of defendants house use a public address system or bullhorn to tell anyone in the house to step out because the police were there. Officers also knocked on defendants front door and rang the doorbell, but no one answered. No one responded to any of these efforts to contact the house.
The rear sliding glass door of defendants house was unlocked. Mooney pulled it open, announced himself as a police officer, and ordered any persons in the house to make themselves known and step out. In the beam of his flashlight, Mooney saw a man inside the house who matched the description Liu had given him of the man who had peeked over the wall in front. The man ran from the kitchen of the house to a wall near the front door. Mooney ordered the man to come back and step out of the house, but the man did not comply.
Two large pit bull dogs emerged from the living room area of the house and charged at the officers. Liu shot the dogs with a pepper ball gun, and the officers closed the sliding door. Mooney told Liu what he had seen inside the house. The officers called defendants house again via the dispatcher and knocked on defendants door again as well. Neither Liu nor Mooney stepped inside the house.
Sergeant Hedge called for a canine officer and dog to assist the officers. The canine unit arrived 10 to 20 minutes later. Liu and Mooney, with the canine officer and the dog, then entered defendants house through the back sliding glass door and searched the house, first putting the pit bulls in different rooms. They entered because they were concerned about the safety of any occupants who might be in the house.
The officers found defendant hiding in the downstairs bathroom. Liu recognized defendant as the man who had run from him at the wall in front of the house.
2. Trial court ruling
The trial court ruled the officers had probable cause to enter and search defendants house. It further ruled that the officers failure to obtain a warrant was justified under three exceptions to the warrant requirement: (1) exigent circumstances; (2) hot pursuit; and (3) the community caretaker exception. Accordingly, the court denied the motion to suppress.
3. Standard of review
"When reviewing a ruling on an unsuccessful motion to exclude evidence, we defer to the trial courts factual findings, upholding them if they are supported by substantial evidence, but we then independently review the courts determination that the search did not violate the Fourth Amendment. [Citation.]" (People v. Memro (1995) 11 Cal.4th 786, 846.)
4. Analysis
As stated, the trial court relied on the exigent circumstances, hot pursuit, and community caretaker exceptions to the warrant requirement. Because we conclude the exigent circumstances exception applied in this case, we do not consider the hot pursuit and community caretaker exceptions.
The United States Supreme Court has not defined "exigent circumstances" for purposes of the Fourth Amendment, preferring instead to decide the existence of exigent circumstances on a case-by-case basis. However, in a 1990 opinion, the court cited with approval a Minnesota Supreme Court decision in which that court had stated that exigent circumstances exist in the case of "`hot pursuit of a fleeing felon, or imminent destruction of evidence, [citation], or the need to prevent a suspects escape, or the risk of danger to the police or to other persons inside or outside the dwelling. [Citation.]" (Minnesota v. Olson (1990) 495 U.S. 91, 100, italics added; see also People v. Thompson (2006) 38 Cal.4th 811, 818.)
As the use of the disjunctive "or" suggests, any one of these factors is enough to establish exigent circumstances. The Olson court noted, again with apparent approval, the Minnesota Supreme Courts belief that if hot pursuit does not apply, "there must be at least probable cause to believe that one or more of the other factors justifying the entry were present . . . ." (Minnesota v. Olson, supra, 495 U.S. at p. 100, italics added.)
As we will explain, at least two of the enumerated circumstances — "`the need to prevent a suspects escape" and "`the risk of danger to the police or to other persons inside or outside the dwelling" — are applicable to this case. We consider separately the circumstances warranting (a) the officers entry into defendants backyard; (b) their visual inspection of the interior of the house after Mooney opened the unlocked back sliding door; and (c) their entry into the house.
a. Entry into backyard
"The Fourth Amendment prohibits only unreasonable searches . . . ." (Bell v. Wolfish (1979) 441 U.S. 520, 558, italics added.) "An action is `reasonable under the Fourth Amendment, regardless of the individual officers state of mind, `as long as the circumstances, viewed objectively, justify [the] action. [Citation.]" (Brigham City, Utah v. Stuart (2006) ___ U.S. ___ [126 S.Ct. 1943, 1948].) In addition, there need only be probable cause to believe exigent circumstances exist. (Minnesota v. Olson, supra, 495 U.S. at p. 100.) Probable cause, as the name necessarily implies, "`does not deal with hard certainties, but with probabilities." (Texas v. Brown (1983) 460 U.S. 730, 742.)
At the time Liu and Mooney entered defendants backyard, they knew at least the following facts: (1) Cavazos believed an intruder had entered his house through a rear sliding glass door; (2) the intruder was no longer in the Cavazos house; (3) while Liu was talking to Cavazos, a man looked over the wall next to defendants house; (4) when Liu announced himself as a police officer and told the man to identify himself, the man turned and fled into defendants backyard, disappearing toward the rear of defendants house; and (5) the man had not been seen trying to leave the area by any of the officers who had set up a perimeter.
Knowing these facts, Liu and Mooney had probable cause to suspect that the man Liu had seen earlier in defendants backyard was the intruder into the Cavazos house. Hence, exigent circumstances existed in the need to prevent the escape of a fleeing felon, justifying a search to determine if the suspect was still in defendants backyard.
Furthermore, until the officers determined who the suspect was and where he had gone, they reasonably could view the suspect as a continuing potential threat to Cavazos, the deputies, and others in the vicinity, including any occupants of defendants house. Though the officers could not be certain the suspect was still in defendants backyard, they had probable cause to believe it, as they had eliminated the other possibilities except the possibility that the man had entered defendants house. The officers reasonable belief that a danger of harm existed if the suspect remained at large was enough to constitute exigent circumstances justifying a search to determine if the suspect was in the yard.
The officers also could take into account the seriousness of the crime they suspected the subject had committed. "[I]n assessing the risk of danger, the gravity of the crime and likelihood that the suspect is armed should be considered." (Minnesota v. Olson, supra, 495 U.S. at p. 100 [citing state courts conclusion with approval].)
While there was no indication the suspect was armed, neither was there any indication he was not. Moreover, residential burglary is statutorily defined as a "serious felony." (Pen. Code, § 1192.7, subd. (c)(18).) Breaking into an occupied private home in the middle of the night to commit a burglary "is a serious crime, with an ever-present potential for exploding into violent confrontation. The need to prevent the imminent escape of such an offender is clearly an exigent circumstance within the [hot pursuit exception]." (People v. Escudero (1979) 23 Cal.3d 800, 811, fn. omitted [rejecting residential burglars claim that there were no exigent circumstances because there was no evidence he was armed and dangerous].)
Finally, while a fenced backyard is within the curtilage of the adjoining residence and therefore receives Fourth Amendment protection (Causey v. City of Bay City (6th Cir. 2006) 442 F.3d 524, 528-529), it receives less protection than the residence itself. A backyard is a "`lesser area of privacy" (United States v. Gorman (9th Cir. 1996) 104 F.3d 272, 275), and therefore "may be subject to warrantless search under circumstances of less demanding urgency than are required to authorize a warrantless search of a house, office or similar structure. [Citations.]" (People v. Sahagun (1979) 89 Cal.App.3d 1, 20; accord, People v. Westmoreland (1976) 58 Cal.App.3d 32, 49.)
Based on what Liu and Mooney knew when they entered the yard, it was objectively reasonable for them to conclude there was an immediate need to enter the yard and determine if the suspect Liu had seen was still there. Therefore, the entry did not violate the Fourth Amendment.
b. Opening door and looking into house
Defendant contends that even if it is assumed the officers presence in the backyard was justified, Mooney, by taking the additional steps of opening the sliding door and shining his flashlight inside the house, conducted an unlawful search. Where an officer is lawfully in a position to make a visual observation of property, making the observation is only a "search" for Fourth Amendment purposes if the officer does something to disturb the scene observed, or in other words, causes an additional invasion of the occupants privacy interest. (Arizona v. Hicks (1987) 480 U.S. 321, 324-325 [even though officer was lawfully inside apartment to investigate shooting, moving stereo equipment to expose serial numbers was an additional search not justified by plain view doctrine or any additional exigent circumstance].) Mooneys opening of the door to look inside the house exposed the interior of the house to more invasive observation and therefore was a search for Fourth Amendment purposes.
However, the search was reasonable under the circumstances. First, merely opening the unlocked door, without going inside, was a minimal additional intrusion. "The less intrusive a search, the less justification is required. . . . Entry into a domicile usually requires a search warrant, [citations], which can be had only on probable cause, but quick inspections may be justified by lower degrees of suspicion." (United States v. Brown (7th Cir. 1995) 64 F.3d 1083, 1086, italics added.)
The circumstances in this case amply justified Mooneys minimal additional intrusion. In addition to the facts the officers knew when they entered defendants backyard, they now knew: (1) the suspect was no longer in the yard; (2) there were no lights or TV on in defendants house; (3) the rear door to the house was unlocked; and (4) if there was anyone in the house, the person either deliberately did not respond to phone calls and police orders to come out or was being prevented from doing so.
These facts supplied probable cause to believe that: (1) the suspect might have entered defendants house in an effort to escape from the officers; and (2) the suspect might be keeping the lawful occupants from responding to the police. In either event, exigent circumstances existed in the need to prevent the escape of a suspected felon, the need to prevent potential harm to any occupants of the house, and the need to prevent potential harm to the officers as long as the suspect remained at large.
Contrary to defendants argument, the fact the officers could not see anything inside the house, and there were no lights on, did nothing to negate probable cause or exigent circumstances. In fact, the absence of any sign of occupation from the house increased the likelihood that the suspect had entered it. An intruder trying to hide from law enforcement in a house would hardly want to display any signs of his presence.
Additional factors supporting an inference that the suspect had entered the house were the facts that the sliding door was unlocked and there was no response to the officers efforts to contact the house. "[M]ost people keep their doors locked . . . ." (United States v. Banks (2003) 540 U.S. 31, 37.) Most people also would respond to phone calls and police outside their house.
On similar facts — a suspected burglary, no signs of occupation, and an unlocked door — the courts have found exigent circumstances sufficient to support not only looking inside a house, but also warrantless entry. In United States v. Tibolt (1st Cir. 1995) 72 F.3d 965, the police received word of a security alarm at a residence. The security company was unable to make phone contact with the residence. An officer mistakenly went to the residence next door. He found no signs of forced entry, but a rear door was unlocked. Five minutes later, a backup officer arrived and recognized the house as the previous target of a drug task force. However, he was not sure whether the subject of the investigation still owned the house, or whether the house was still the subject of any investigation. (Id. at p. 967.)
The officers then made a warrantless entry through the unlocked rear door, sweep-searched the house, and found a marijuana-growing facility in the basement. (United States v. Tibolt, supra, 72 F.3d at p. 967.) Upholding the warrantless entry, the court held the facts "unquestionably" supported the trial courts conclusion that the first officer "had probable cause to believe a breaking and entering had been or was being committed at the Tibolt residence." (Id. at p. 970.) The court explained: "Instead of finding all doors secured, as one might reasonably expect while the residents are away, he found an unlocked door on the rear deck and received no response to his efforts to communicate with anyone who might be inside. These circumstances significantly enhanced the likelihood of an intruder." (Ibid.) "Without entering, he could not know but what an intruder had managed to get into the residence, and even injured or captured a resident, then fled; or had been caught off guard by the police and remained in the residence with a forcibly detained resident." (Ibid.)
In Reardon v. Wroan (7th Cir. 1987) 811 F.2d 1025, police received a report of a burglary in progress at a fraternity house during a university Christmas break. When they arrived there were no lights on and the door was unlocked. Unknown to the officers, two fraternity members were in the basement. The officers entered the house with guns drawn and confronted the students. The students later sued the officers under Title 42 United States Code section 1983 for the warrantless entry. (Reardon, at pp. 1026-1026.) Granting summary judgment for the officers, the court stated, "[W]e conclude based on these facts that the exigency requirement was satisfied as a matter of law." (Id. at p. 1030.)
Here, Liu and Mooney had received a burglary call, though for the house next door. They were unable to discern any signs of occupation in defendants house, and the door was unlocked. As they had not been able to find the suspect since he was last seen in the yard, it was reasonable under the circumstances to look inside the house and identify themselves in an effort to determine whether he had entered the house.
Finally, although opening the door was a search, Mooneys shining of the flashlight inside the house was not an additional search and therefore did not require any additional showing of exigent circumstances. Where an officer is lawfully in a position to make an observation, "the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection." (Texas v. Brown, supra, 460 U.S. at p. 740, fn. omitted; accord, United States v. Dunn (1987) 480 U.S. 294, 305 ["the officers use of the beam of a flashlight, directed through the essentially open front of respondents barn, did not transform their observations into an unreasonable search within the meaning of the Fourth Amendment"].)
For these reasons, Mooneys act of opening the door and looking inside with his flashlight was not a Fourth Amendment violation.
c. Entry into house
At the time the officers entered the house, in addition to the facts the officers knew when they entered the yard and later when they looked inside the house, the officers now knew: (1) there was a person in the house who matched the description of the suspect they were seeking; and (2) the person fled when told to come out of the house.
Defendant argues that given the presence of the pit bulls, who charged the officers when Mooney opened the sliding door, the officers no longer could reasonably believe the suspect was an intruder rather than a lawful occupant — the dogs would not have allowed a stranger to enter. However, even if the person Mooney saw inside the house was a lawful occupant, the officers now had good reason to believe he was the same man who had fled from the wall and, inferentially, the one who had placed the lawn chair against the wall and entered the Cavazos house from the backyard. Therefore, exigent circumstances existed in the need to prevent the escape of a suspected felon.
d. Passage of time
Defendant contends that even if exigent circumstances might have existed at one time during the officers efforts to locate the suspect, any exigent circumstances had dissipated by the time they entered the yard and the house, because the officers never continuously pursued the suspect. Instead, they delayed at each stage of the pursuit, waiting first for more officers to arrive before doing anything, waiting again while a perimeter was set up and efforts were made to contact the house by phone and at the front door, and waiting once again for the canine team to arrive. This contention is not persuasive.
Viewing the record most favorably to the trial courts ruling, and consistently with Lius testimony, less than 20 minutes passed from the time Liu first saw the suspect to the time the officers entered the house — four minutes while Mooney and the other officers traveled to the scene, three minutes for the search of the Cavazos house, and 10 minutes while the canine team traveled to the scene. While presumably additional time passed while the officers searched defendants yard and other officers tried to contact the house, assuming these activities were pursued at the same time the total time elapsed still most likely did not exceed 30 minutes.
Decisions applying the exigent circumstances exception have found this amount of delay, or even much more, not sufficient to dissipate exigent circumstances on facts comparable to those present here. In United States v. Hackett (9th Cir. 1980) 638 F.2d 1179, drug agents entered the defendants garage, from which he had just fled when he realized the agents were looking for him. After finding the defendant and his accomplice, Turner, were gone, the agents went to the front door of the defendants house. They knocked and demanded entry, but they did not enter because a large German shepherd dog was inside. (Id. at p. 1185.)
The agents spent additional time locating and arresting Turner and then waited until the defendants girlfriend returned to the house. After the agents threatened to shoot the dog, the girlfriend subdued the dog and let them in, where they found the defendant hiding. A total of about 30 minutes had passed between the agents entry into the garage and their entry into the house. (Id. at p. 1185.)
The court rejected the defendants argument that "whatever exigency existed to justify the warrantless entry into the garage had dissipated before the entry into the house . . . . "(United States v. Hackett, supra, 638 F.2d at p. 1185.) The court pointed out that during the intervening 30 minutes, "the agents were not idle." (Ibid.) Instead, "the agents acted reasonably in dealing with the intervening problems of Hacketts dog, Turners arrest and the negotiations with Hacketts girl friend about entry into the house. [Citation.]" (Id. at pp. 1185-1186.)
Here, too, Liu and Mooney were not idle between the time Liu saw the suspect and the time they entered the house to search for him. They spent the intervening time searching for the suspect, trying to determine whether there was anyone in the house, and subduing the dogs. Further, during that time they were waiting for backup officers and the for canine team to assist in the search. "[W]aiting a half hour or less for backup . . . does not mean that there was no exigency." (Causey v. City of Bay City, supra, 442 F.3d at p. 531.)
In addition, the officers also acted incrementally, first entering only the yard; then only looking into the house; and, only after exhausting the other alternatives, entering the house to conduct the search. At each step, they had increasing reason to believe the suspect had entered the house. It was reasonable, and not inconsistent with a finding of exigent circumstances, for the officers to proceed in that manner as their suspicions gradually became stronger.
In People v. Panah (2005) 35 Cal.4th 395, the California Supreme Court held that a delay from 5:30 p.m. to the morning of the next day did not dissipate the exigent circumstances supporting warrantless entry of the defendants apartment. During the delay, the police were present at the apartment complex looking for a missing girl who had been seen with the defendant. They entered the defendants apartment three times during that period in an effort to find the girl. Over the course of the delay, the officers gradually received more and more information associating the defendant with the girl. (Id. at p. 465.) The court therefore held that notwithstanding the long delay, "the information police received regarding defendants possible involvement in Nicoles disappearance heightened the exigent circumstances and that the fourth entry was justified on this ground." (Id. at p. 468, fn. omitted.)
Here, similarly, as the officers gradually determined that the suspect was not in the Cavazos house, was not in defendants yard, and had not to their knowledge left the area, the likelihood that the suspect was in defendants house increased, and the exigent circumstances were heightened. The delay in actively pursuing the suspect was reasonable and did not refute the existence of exigent circumstances.
B. Admission of Expert Testimony Regarding Burglary Tools
Over defendants objection, the court permitted Sergeant Hedge to testify that burglars often open locked sliding glass doors without breaking the doors, by using a screwdriver or similar tool such as a crowbar or knife. Hedge explained that the burglars can use one of these tools to either pry the lock open or lift the door to tilt it off the track. He further testified that for the most part it is not difficult to open a sliding door by lifting it off the track. Defendant contends the admission of this testimony was prejudicial error. We review the trial courts ruling for abuse of discretion. (People v. Smith (2003) 30 Cal.4th 581, 627.)
1. Standard for admissibility
Expert opinion testimony is admissible if it relates to "a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . ." (Evid. Code, § 801, subd. (a).) In People v. Jenkins (1975) 13 Cal.3d 749, an officer who arrested the defendants for burglary testified, as an expert, that tools found in the trunk of the defendants car — a wrecking bar, crow bar, tin snips, linemans pliers, and bolt cutters — were the type commonly used to commit burglaries. (Id. at pp. 752, 755.) The Supreme Court upheld the admission of the testimony, holding that the subject of the testimony was "`"sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." [Citation.]" (Id. at p. 755.)
Here, perhaps the use of a screwdriver to pry open a sliding door is obvious enough and common enough that a jury would not be assisted by expert testimony that a screwdriver can be used in that manner. (See, e.g., People v. Beeler (1995) 9 Cal.4th 953, 966 ["[t]he houses rear sliding-glass door had been pried open with a screwdriver"]; People v. Reeves (2001) 91 Cal.App.4th 14, 23 [officers found "a screwdriver that had been used to pry open the sliding glass door of the apartment"].) However, the Peoples theory was not that a screwdriver was used to pry the door open, but that it was used to lift the door off its track, so it could be opened without damaging the door. That particular use of a screwdriver was sufficiently beyond common experience that expert testimony was appropriate.
2. Expert Qualifications
Defendant argues that even if the use of the screwdriver was an appropriate subject for expert testimony, Hedge was not qualified to testify as an expert on that subject. A party wishing to challenge an experts qualifications must do so in the trial court to preserve the objection for appeal. (People v. Farnam (2002) 28 Cal.4th 107, 161-162; People v. Bolin (1998) 18 Cal.4th 297, 321.) Defendant failed to object in the trial court to Hedges qualifications to testify on the use of a screwdriver to open a sliding door. In fact, it is apparent from the record that defense counsel did not dispute Hedges qualifications, as counsel asked no questions on cross-examination concerning Hedges background or expertise. Consequently, defendant waived his present objection.
3. Relevance
Defendant additionally argues that since it was not contested that someone opened the sliding back door of the Cavazos house, how the door was opened was not germane to the elements of the offense of burglary. Instead, the only issue was who opened the door. Therefore, he contends, Hedges testimony was not relevant to any disputed issue and should not have been admitted.
Defendant is simply incorrect in asserting that Hedges testimony was not relevant to the issue of who opened the door. As previously stated, when the officers searched defendants house, Mooney saw a screwdriver on the kitchen counter. Hence, Hedges testimony that the door to the Cavazos house could have been opened with a screwdriver without much difficulty was relevant as tending to show defendant could have been the one who opened the door.
As defendant notes, the People incorrectly state that the screwdriver was found in the Cavazos house. Further, because the Peoples argument on the admissibility of Hedges testimony proceeds from their mistaken factual premise, their argument unfortunately has only limited relevance to this courts consideration of the issue.
Defendant argues that a screwdriver is an innocuous, everyday object, and therefore the fact there was one in his kitchen had no legitimate tendency to connect him with the attempted burglary. A reasonable jury certainly could reach that conclusion and find that the presence of the screwdriver was a mere coincidence. However, a jury could just as reasonably reach the opposite conclusion and find that the presence of that particular everyday object at that hour of the night, shortly after a break-in next door, in the house of a subject who ran from and hid from the police and who had a lawn chair propped against the wall between his backyard and the backyard next door, was evidence tending to connect that subject with the crime.
Further, the Peoples theory that the screwdriver was used to lift the door from the track was relevant because it explained how an intruder could have gotten inside the Cavazos house even though the door had no apparent damage. There was evidence to support the theory that the intruder opened the door in that manner. Cavazos testified that as the intruder approached the door, he "seemed to bend down and start to — you know, fooling with the bottom of the window." If the door was opened by a method that could have been accomplished using a screwdriver, that fact, in combination with the other evidence pointing to defendant as the intruder — the juxtaposition of the houses, the fact defendant presumably would be aware the Cavazos family had moved out, defendants presence in his backyard around the time of the break-in, defendants flight when confronted by the police, and his inconsistent stories when he spoke with the police — had a tendency to prove a disputed factual issue, i.e., the identity of the intruder. Accordingly, Hedges testimony was relevant and properly admissible.
C. Custody Credits
Under Penal Code section 2900.5, subdivision (b), a defendant is entitled to presentence custody credit "only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted." The California Supreme Court has interpreted this language to mean that a defendant who is on parole or probation when he is arrested for a new offense, and whose parole or probation is then revoked, cannot credit the time served on account of the revocation against his sentence on the new offense unless he shows that "but for" the new offense his parole or probation would not have been revoked. In other words, a defendant under those circumstances "may not be credited with jail or prison time attributable to a parole or probation revocation that was based only in part upon the same criminal episode" that led to his new sentence on the current offense. (People v. Bruner (1995) 9 Cal.4th 1178, 1191.)
Here, the court heard the matter of custody credits on August 1, 2005, one month after it sentenced defendant. Defense counsel argued defendant should receive credit for all of the time he had been in custody since being arrested for the present burglary, because even though his probation for his Orange County offenses was revoked, the "only reason" defendant was taken into pretrial custody was his commission of the new offense. Therefore, defendant was entitled to presentence credit in this case for the time he had served as a result of the revocation of his probation.
The court took the matter under submission to conduct further research. Our record does not show that the court ever formally ruled on the issue of custody credits. There is no indication of a subsequent hearing on the issue and no minute order showing that the court addressed the issue without a hearing. The abstract of judgment, filed three days after the August 1, 2005, custody credits hearing, stated that judgment had been pronounced on August 1 and left blank the box provided next to that statement for entry of custody credits.
The court had a duty to determine defendants custody credits. (Pen. Code, § 2900.5, subd. (d).) Of course, one might infer from the absence of an entry in the custody credits box that the court discharged its statutory duty to calculate credits but simply determined defendant was not entitled to any credits. It seems more likely, though, that if that were the case the court would have directed the clerk to enter "0" rather than merely leaving the space blank.
This court cannot determine defendants custody credits, because our record does not show why defendants probation was revoked. Hence, we do not know the extent to which, if any, defendants presentence confinement was due to the attempted burglary for which he was sentenced in this case, as opposed to the probation revocation. It is certainly possible that the revocation was due at least in part to violations other than the burglary. Defendant was charged in this case with misdemeanor resisting a police officer. Although that charge was dismissed based on the statute of limitations, it still could have served as a basis for revoking probation. (See In re Coughlin (1976) 16 Cal.3d 52, 59 ["the fact of an acquittal" of a charged offense "would not preclude revocation of probation"]; People v. Rodriguez (1990) 51 Cal.3d 437, 442 ["`probation may be revoked despite the fact that the evidence of the probationers guilt may be insufficient to convict him of the new offense"].)
Under the circumstances, the preferable course is to remand the matter to permit the trial court to determine the extent to which the revocation of defendants probation may have been due to factors other than his commission of the burglary for which he was sentenced in this case. After making that determination, the court shall determine defendants custody credits pursuant to Penal Code section 2900.5, subdivision (d).
III
DISPOSITION
The judgment is affirmed. The matter is remanded to permit the trial court to determine defendants custody credits. When the court has done so, it shall prepare an amended abstract of judgment setting forth the custody credits and provide a copy of the amended abstract to the Department of Corrections.
We concur:
RAMIREZ, P.J.
MILLER, J.